1
Portions of Exhibit 10.2 have been redacted and are the subject of a
confidential treatment request filed with the Secretary of the Securities and
Exchange Commission.
2
ANADERM RESEARCH CORP.
Amended and Restated Stockholders' Agreement
dated April 23, 1999
(in substitution for the Stockholders' Agreement
dated April 23, 1996, as amended on September 10, 1998)
3
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS........................................................2
ARTICLE II - CAPITAL CONTRIBUTIONS.............................................5
2.1. Capital Contributions.............................................5
2.2. Non Disclosure....................................................7
ARTICLE III - APPLICABILITY; RESTRICTIONS ON TRANSFER OF SHARES................7
3.1. Amendment and Restatement of Original Stockholders' Agreement.....7
3.2. Shares Subject to Agreement.......................................7
3.3. General Restriction on Transfer...................................7
3.4. Permitted Transfers...............................................8
ARTICLE IV - CORPORATE GOVERNANCE..............................................8
4.1. Board of Directors................................................8
4.2. Nomination and Election of Directors..............................9
4.3. Board of Directors................................................9
4.4. Officers of the Company...........................................9
4.5. Quorum of the Board..............................................10
4.6. Action by the Board of Directors.................................10
4.7. Quorum of Stockholders...........................................11
4.8. Action by Stockholder............................................11
ARTICLE V - DISPOSITION OF SHARES.............................................12
5.1. Right of First Refusal...........................................12
5.2. Involuntary Transfers............................................15
5.3. Put and Call Rights..............................................16
5.4. Fair Value.......................................................18
5.5. Tag Along Rights.................................................20
5.6. Take Along Right.................................................22
5.7. Stock Purchase Assignment........................................23
ARTICLE VI - PREEMPTIVE RIGHTS................................................23
6.1. Preemptive Rights................................................23
ARTICLE VII - DEVELOPMENT OF A LEAD COMPOUND..................................24
7.1. Pfizer's Right of First Refusal for Initial Development..........24
7.2. Pfizer's Right of First Refusal for Further Development..........26
7.3. Development by Pfizer............................................26
7.4. Development by the Company.......................................28
7.5. Analog Manufacture...............................................29
7.6. Approval of Analog Production and Screening......................29
7.7. Assignment of Analog Rights......................................29
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7.8. Development of Lead Compound for Different Indications...........29
7.9. Request to Cease Lead Compound Development.......................30
ARTICLE VIII - LEGENDING OF SECURITIES........................................30
8.1. Legends..........................................................30
ARTICLE IX - TERMINATION AND SURVIVAL OF PROVISIONS...........................31
9.1. Termination......................................................31
9.2. Survival.........................................................31
ARTICLE X - REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS....................31
10.1. Representations and Warranties of Each Stockholder...............31
ARTICLE XI - INSUFFICIENT SURPLUS AND INSOLVENCY..............................33
ARTICLE XII - MISCELLANEOUS...................................................34
12.1. Notices..........................................................34
12.2. Entire Agreement.................................................37
12.3. Governing Law....................................................38
APPENDIX A....................................................................40
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ANADERM RESTATED AND AMENDED STOCKHOLDERS' AGREEMENT
THIS RESTATED AND AMENDED STOCKHOLDERS'AGREEMENT ("Agreement") is made as
of the 23rd day of April 1999, among ANADERM RESEARCH CORP., a Delaware
corporation, having its principal place of business at 235 East 42nd Street, New
York, New York 10017 (the "Company"), PFIZER INC., a Delaware corporation,
having its principal place of business at 235 East 42nd Street, New York, New
York 10017 ("Pfizer"), OSI PHARMACEUTICALS, INC., a Delaware corporation,
formerly known as Oncogene Science, Inc., having its principal place of business
at 106 Charles Lindbergh Boulevard, Uniondale, New York 11553 ("OSI"), NEW YORK
UNIVERSITY, a New York corporation, having a principal place of business at 550
First Avenue, New York, New York 10016 ("NYU"), ** , each having a business
address at New York University Medical Center, 550 First Avenue, New York, New
York 10016 ** collectively referred to herein as the "NYU Faculty Members").
Pfizer, OSI, NYU and the NYU Faculty Members shall collectively be referred to
herein as the "Stockholders".
WHEREAS, the Company was organized to discover, develop and market
pharmaceutical products for the prevention or treatment of baldness and
wrinkles, and for the control of skin and hair pigmentation; and
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** This portion has been redacted pursuant to a request for confidential
treatment.
6
WHEREAS, the Stockholders entered into a Stockholders' Agreement dated
April 23, 1996 as amended by the Amendment to the Stockholders' Agreement dated
September 10, 1998 (together the "Original Stockholders' Agreement") which they
now wish to be amended and restated by this Agreement;
WHEREAS, the NYU Faculty Members have exercised their options under the
Stock Option Agreement defined in the Original Stockholders' Agreement;
WHEREAS, the Stockholders have entered into a subscription agreement dated
February 27, 1998 (the "Subscription Agreement") which provided for additional
Stockholder capital contributions to the Company by certain of the Stockholders
in exchange for shares in the Company; and
WHEREAS, the parties to this Agreement believe it is in their mutual best
interest to provide for continuity and harmony in the management and the
policies of the Company and therefore the parties hereto wish to amend and
restate the Original Stockholders' Agreement as set out below.
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein and for other valuable consideration, receipt of which is hereby
acknowledged, it is mutually agreed and covenanted by and among the parties to
this Agreement as follows:
ARTICLE I - DEFINITIONS
As used in this Agreement or any of the Schedules or Exhibits hereto, the
following terms have the meanings indicated. All capitalized terms used but not
defined herein shall have the same meanings ascribed to them, respectively, in
the Research Agreements (as defined in this Article 1), as such may be amended
from time to time.
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1.1 "Affiliate" means any corporation or other legal entity owning,
directly or indirectly, 50% or more of the voting capital shares or similar
voting securities of the Company, OSI or Pfizer, or any corporation or other
legal entity 50% or more of the voting capital shares or similar voting rights
of which is owned, directly or indirectly, by the Company, OSI or Pfizer.
However, a foreign corporation or other legal entity shall be considered an
Affiliate of the Company, OSI or Pfizer, if the Company, OSI or Pfizer,
respectively, owns the maximum amount of voting securities of such corporation
or entity that a U. S. company is permitted to own under the laws of the
applicable foreign country and such maximum amount is at least 40%.
1.2 "Anaderm Royalty" shall have the meaning given to such term in Section
7.3 hereof.
1.3 "Common Stock" shall mean the common stock of the Company, but unless
otherwise indicated, any reference to shares of Common Stock outstanding shall
not include shares of Common Stock underlying unexercised options, warrants,
rights or convertible securities of the Company (unless such reference states
that such amount is determined after giving effect to such exercise or
conversion, until such options, warrants or rights have been duly exercised or
convertible securities duly converted.).
1.4 "Drug Product" means a product that contains one or more
therapeutically active compounds or that relates to a method of administering or
using one or more therapeutically active compounds.
1.5 "Fair Value" means the price per share of Common Stock determined in
accordance with Section 5.4.
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1.6 "Field" means the (a) stimulation or control of hair growth, (b)
prevention or reversal of wrinkling of the skin, or (c) alteration of skin or
hair pigmentation, in each case in human subjects.
1.7 "Involuntary Transfer" means any involuntary sale, transfer,
encumbrance or other disposition by, or in which, any Stockholder is deprived or
divested of any right, title or interest in or to its shares of Common Stock,
including, without limitation, any transfer in connection with a divorce, death,
bankruptcy (whether voluntary or involuntary), reorganization, insolvency or
similar proceeding, distraint, levy, attachment, execution or other involuntary
event of any nature whatsoever.
1.8 "NYU Research Agreement" means the Research and Licensing Agreement
dated as of April 23, 1999 among the Company, NYU and Pfizer.
1.9 "OSI Compound File" means compounds maintained by OSI.
1.10 "OSI Research Agreement" means the Collaborative Research Agreement
dated as of April 23, 1999, among the Company, OSI and Pfizer.
1.11 "Permitted Transferee" shall have the meaning given to such term in
Section 3.4.
1.12 "Pfizer Compound File" means the compounds maintained by Pfizer's
Central Research Division.
1.13 "Pfizer Selected Library" means a Selected Library within the Pfizer
Compound File.
1.14 "Research Agreements" means the OSI Research Agreement and the NYU
Research Agreement.
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1.15 "Third Party" means a party other than Pfizer, Anaderm, OSI, NYU or
an Affiliate of Pfizer, OSI or Anaderm.
1.16 "Transferred Shares" shall have the meaning set out in Section 5.2.
1.17 "Valid Claim" shall have the meaning given to such term in either of
the Research Agreements, as applicable.
1.18 For purposes of this Agreement, a Human Therapeutic Product is
considered to be "based on" a Lead Compound which is identified by screening a
Pfizer Selected Library if the Human Therapeutic Product contains, or relates to
a method of administering or using a Lead Compound identified by screening, and
is part of, a Pfizer Selected Library or by screening Analogs of a compound from
a Pfizer Selected Library.
ARTICLE II - CAPITAL CONTRIBUTIONS
2.1. Capital Contributions.
(a) As of the date of this Agreement, the capital structure of the
Company is:
SHARES OF
COMMON STOCK OWNERSHIP INTEREST
** ** **
TOTAL ISSUED SHARES ** **
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** This portion has been redacted pursuant to a request for confidential
treatment.
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(b) Capital Contribution. In order to provide additional funding for
the Company, Pfizer shall have the right (but not the obligation) to subscribe
in cash from time to time for additional shares of Common Stock at the price of
** per share, up to a maximum of ** shares of Common Stock and the Company shall
issue such additional shares as subscribed by Pfizer. Any share subscription by
Pfizer under this section shall not be subject to the provisions of Article 6
herein, which the parties hereto hereby waive on behalf of themselves and their
successors and assigns in accordance with this Agreement.
(c) Other Capital Contributions. In addition to the capital
contributions provided for in this section, additional contributions may be made
to the capital of the Company in accordance with the General Corporation Law of
the State of Delaware, subject to the provisions of Section 6.1 hereof.
(d) The Pfizer Compound File and Other Support by Pfizer for the
Company. To support the Company's research activities and subject as set out
below, Pfizer may from time to time at its discretion permit the Company to use
certain compounds from the Pfizer Compound File as it exists from time to time,
solely for screening purposes in connection with the Research Program provided
that the selection of compounds for use in screening satisfies the Company's
research goals and is consistent with Pfizer corporate policy. Prior to
implementing any screens, the Company will propose screens to Pfizer and Pfizer
shall have the right to approve such screens. At any time after Pfizer has made
available to the
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** This portion has been redacted pursuant to a request for confidential
treatment.
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Company a compound for screening under this Section 2.1(d), Pfizer may require
that the Company immediately return such compound if Pfizer has designated it as
a clinical candidate or a backup to a clinical candidate and the Company shall,
if requested in writing by Pfizer, forthwith cease all development of such
compound and return the same to Pfizer.
(e) The OSI Compound File. To support the Company's research
activities, OSI may from time to time at its discretion permit the Company to
use certain compounds from the OSI Compound File as it exists from time to time,
solely for screening purposes in connection with the Research Program, provided
that the selection of compounds for use in screening satisfies the Company's
research goals and is consistent with OSI corporate policy.
2.2. Non Disclosure. Pfizer shall not be obliged to disclose information
relating to a Pfizer compound or Pfizer Selected Library, including but not
limited to chemical structures, methods of synthesis, structure-activity
relationships, materials and methods for production, recovery and purification.
ARTICLE III - APPLICABILITY; RESTRICTIONS ON TRANSFER OF SHARES
3.1. Amendment and Restatement of Original Stockholders' Agreement. Each
of the Stockholders hereby acknowledges and agrees that the Original
Stockholders' Agreement in its entirety is hereby amended and restated by this
Agreement which shall apply in substitution therefor.
3.2. Shares Subject to Agreement. Each of the Stockholders hereby agrees
that all shares of Common Stock held on the date hereof or acquired at any time
hereafter by such Stockholder shall be subject to the provisions set forth in
this Agreement.
3.3. General Restriction on Transfer. Each Stockholder hereby agrees not
to sell, assign, hypothecate, transfer, pledge, encumber, give away, or
otherwise dispose of any shares
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of Common Stock that such Stockholder holds on the date hereof or acquires at
any time hereafter except pursuant to and in compliance with the terms and
conditions of this Agreement. The Company hereby agrees that it will not
transfer or recognize any transfer of Common Stock except in compliance with the
terms of this Agreement. All certificates representing shares of Common Stock of
the Company shall be legended in accordance with Article VIII hereof.
3.4. Permitted Transfers. Notwithstanding any provision to the contrary in
this Article III, any Stockholder may, upon prior notice thereof to the Company,
transfer title to its shares of Common Stock to (i) a trust established by such
Stockholder, if the sole beneficiaries of such trust are the Stockholder, the
Stockholder's spouse or the Stockholder's children, (ii) an Affiliate of such
Stockholder or, (iii) in the case of any transfer of shares of Common Stock
pursuant to Article 5 to Pfizer (each a "Permitted Transferee"), provided that
in the case of each of the foregoing, such Permitted Transferee executes an
instrument satisfactory to the Company agreeing to be bound by the terms and
provisions of this Agreement.
ARTICLE IV - CORPORATE GOVERNANCE
4.1. Board of Directors. In accordance with the By-Laws of the Company and
Section 141 of the General Corporation Law of the State of Delaware, the Board
of Directors shall be responsible for the governance of the Company. On the date
hereof the Board of Directors consists of ** persons as provided in Section 4.3.
At any time after the date hereof, the number of directors may be increased or
decreased as provided in the Company By-Laws.
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** This portion has been redacted pursuant to a request for confidential
treatment.
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4.2. Nomination and Election of Directors. As long as Pfizer owns a
majority of the outstanding shares of Common Stock, the Stockholders agree that
Pfizer shall have the right to nominate and appoint all members of the Board of
Directors save, for so long as OSI remains a Stockholder, one, who shall be
nominated by OSI. Pfizer and OSI each hereby agree to vote their respective
shares of Common Stock for the election of the nominees of Pfizer and (if
applicable) OSI in accordance with this Section 4.2. Should OSI cease to be a
Stockholder, it shall promptly obtain the resignation of its nominated director
and tender such resignation to the Company.
4.3. Board of Directors. The Stockholders hereby agree that on the date
hereof the Board of Directors of the Company shall consist of the following five
persons, each of whom is nominated by the Stockholder set forth opposite such
directors name:
Name of Director Nominated by:
---------------- -------------
** **
4.4. Officers of the Company. The Stockholders acknowledge that the Board
of Directors of the Company has elected, in accordance with the By-Laws, the
following persons as officers of the Company in the positions set forth opposite
their respective names:
Name Office
---- ------
** **
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** This portion has been redacted pursuant to a request for confidential
treatment.
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4.5. Quorum of the Board. No action shall be taken at any meeting of the
Board of Directors of the Company, unless at least a majority of the entire
Board shall be present. For purposes of a quorum, any director may be present at
any meeting in person, by means of telephone or similar communications equipment
by means of which each person participating in the meeting can hear and speak to
each other or, to the extent permitted by applicable law, by proxy.
4.6. Action by the Board of Directors. If a quorum exists, any action
taken by the Board of Directors shall be authorized by the affirmative vote of a
majority of those members of Board of Directors present at the meeting;
provided, however, that: (a) with respect to action taken by the Board of
Directors pursuant to Section 3.3 of the OSI Research Agreement concerning
restrictions as to other research conducted by Pfizer in the Field, any such
action shall require authorization by all of the members of the Board of
Directors, and (b) the affirmative vote of ** members of the Board of Directors
is required to take the following actions (unless, in the case of (vii) and
(viii) such expenditures are provided for in the annual budget):
(i) to authorize, issue or enter into any agreement providing
for the issuance (contingent or otherwise) of any equity securities or any notes
or debt securities containing equity features (including, without limitation,
any notes or debt securities convertible into or exchangeable for equity
securities) save that this sub-paragraph (i) shall not apply to any issue or
agreement to issue additional shares of Common Stock to Pfizer under Section
2.1(b) of this Agreement;
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** This portion has been redacted pursuant to a request for confidential
treatment.
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(ii) to directly or indirectly redeem, purchase or otherwise
acquire, any of the Company's equity securities;
(iii) to make any amendments, modifications or changes to the
Certificate of Incorporation or By-Laws of the Company, the OSI Research
Agreement or the NYU Research Agreement;
(iv) to hire, fire and determine the amount of compensation
paid to Officers of the Company;
(v) to sell, lease or otherwise dispose of more than 25% of
the Company's assets in any transaction or series of transactions;
(vi) to merge or consolidate with any person or entity;
(vii) to create, incur, assume or suffer to exist any
indebtedness exceeding in the aggregate $10,000 outstanding at any time other
than in the ordinary course of business; or
(viii) to make any capital expenditures exceeding $10,000 with
respect to any single capital expenditure or $250,000 in the aggregate during
any twelve-month period.
4.7. Quorum of Stockholders. No action shall be taken at any meeting of
stockholders of the Company unless at least a majority of the holders of the
outstanding shares of Common Stock entitled to vote are present in person or by
proxy.
4.8. Action by Stockholder. If a quorum exists, any corporate action taken
at a meeting of the stockholders, except as otherwise set forth herein and
except as may be required by law, shall be authorized by the affirmative vote of
a majority of the votes cast at a meeting of stockholders by the holders of
shares of Common Stock entitled to vote thereon.
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ARTICLE V - DISPOSITION OF SHARES
5.1. Right of First Refusal
(a) If NYU or any NYU Faculty Member (the "NYU Seller") desires to
sell, transfer or otherwise dispose of any or all of his or its shares of Common
Stock, such NYU Seller may offer to sell such shares (the "Offered Shares") to
an unaffiliated Third Party for all cash payable at the closing of such sale,
subject to the Company's rights as hereinafter set forth, or offer to sell such
Offered Shares to the Company directly. The NYU Seller shall give written notice
thereof (an "Offering Notice") to the Company, with a copy to each of the other
Stockholders, which Offering Notice shall state or contain (i) the name of such
NYU Stockholder, (ii) the number of Offered Shares, (iii) the name, address and
the amount of cash proposed to be paid by a prospective purchaser pursuant to a
bona fide offer (the "Offer Price"), if any, and all the other terms and
conditions relating to such bona fide offer. The delivery by any NYU Seller of
an Offering Notice shall constitute a binding offer by the NYU Seller to sell to
the Company, and the Company shall thereupon have the right, but not the
obligation, to purchase any or all, of the Offered Shares at the Offer Price
(the applicable price being herein referred to as the "Purchase Price");
provided, however, that such Purchase Price shall be paid in accordance with
Section 5.1(g) hereof. Within thirty (30) days after the Company's receipt of
the Offering Notice, the Company shall notify the NYU Seller in writing of its
acceptance or rejection of the offer to purchase the Offered Shares.
(b) In the event that the Company elects to purchase all of the
Offered Shares, the closing shall take place in accordance with Section 5.1(g)
hereof.
(c) In the event that the Company rejects the offer to purchase the
Offered Shares from the NYU Seller or elects to purchase fewer than all of the
Offered Shares, the
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NYU Seller shall deliver written notice thereof (the "Second Notice") to each of
the other Stockholders with a copy to the Company, within ten (10) days after
the NYU Seller's receipt of the Company's response to its offer. The Second
Notice shall state or contain (i) the number of Offered Shares, (ii) the number
of Offered Shares which the Company has agreed to purchase, if any, (iii) the
number of Offered Shares available for sale to the other Stockholders, and (iv)
the name, address and the Offer Price proposed to be paid by the prospective
purchaser. The delivery by any NYU Seller of a Second Notice shall constitute a
binding offer by the NYU Seller to sell to the Company and the other
Stockholders, and the Company and the other Stockholders shall thereupon have
the right, but not the obligation, to purchase in the aggregate, all, but not
less than all, of the Offered Shares at the Purchase Price; provided, however
that such Purchase Price shall be paid in accordance with Section 5.1(g) hereof.
(d) Any Stockholder (other than the NYU Seller) electing to purchase
Offered Shares shall deliver to the NYU Seller, with a copy to the Company,
within twenty (20) days after the Second Notice is sent to the Stockholders (the
"Acceptance Period"), a notice (an "Acceptance Notice") of such Stockholder's
election stating the maximum number of Offered Shares which such Stockholder
desires to purchase (such Stockholder's "Elected Share Number"). The giving of
such Acceptance Notice shall irrevocably commit the Stockholder giving such
notice (an "Electing Stockholder") to purchase the Elected Share Number (or any
lesser number thereof as may be determined as hereinafter provided).
(e) In the event the Company, together with the Electing
Stockholders, have not elected to purchase, in the aggregate, all of the Offered
Shares, then the NYU Seller may sell the Offered Shares to the prospective
purchaser at the Offer Price for cash consideration
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payable at closing and on the other terms and conditions specified in the
Offering Notice, and such sale shall take place within sixty (60) days after the
expiration of the Acceptance Period; provided, however that such prospective
purchaser shall execute an instrument satisfactory to the Company agreeing to be
bound by the terms and provisions of this Agreement (including this Article 5).
References herein to Stockholders and to shares of Common Stock held or owned by
any Stockholder shall be deemed to include any such prospective purchaser that
purchases Common Stock hereunder and such shares held or owned by such
prospective purchaser, respectively. If such sale has not taken place within
sixty (60) days following the expiration of the Acceptance Period, all the
provisions contained in this Agreement shall again be in effect with respect to
such Offered Shares.
(f) If all of the Offered Shares offered to the Stockholders have
been fully subscribed for by the Company and the Electing Stockholders pursuant
to Section 5.1(e), then the Company shall send to the NYU Seller, within five
days after the expiration of the Acceptance Period, a written notice to such
effect and shall include in such notice the name of each Electing Stockholder,
the number of such Offered Shares allocated to such Electing Stockholder and the
Company for purchase and the closing date of the purchase and sale of the
Offered Shares. In the event the Offered Shares available to the Electing
Stockholders are oversubscribed for, the number of Offered Shares each Electing
Stockholder shall be allocated shall be determined pro rata based on the
percentage that each Electing Stockholder's shares of Common Stock bears to the
total outstanding shares of Common Stock.
(g) In the event that the Company and/or the Electing Stockholders,
as the case may be, elect to purchase all of the Offered Shares under this
Section 5.1, the closing of the purchase and sale of the Offered Shares shall
take place at the principal executive offices of
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the Company within thirty (30) days following the date the notice to such effect
is given by the Company to the NYU Seller pursuant to Sections 5.1(a), 5.1(c) or
5.1(f) (whichever is applicable), or at such other place, on such other date, or
both, as the NYU Seller, the Company and the Electing Stockholders, as
applicable, may agree upon in writing. The Purchase Price payable by the
Electing Stockholders and/or the Company hereunder shall be paid either (i) in
full by cash or certified check at the closing of such purchase, or (ii)
one-third of the Purchase Price shall be paid in cash or by certified check at
the closing; and the balance of the Offer Price shall be payable on the first
and second anniversaries of such closing in two equal annual installments,
together with interest from the closing calculated on the amount of such
installment at the prime rate, as in effect from time to time during the period
prior to the payment of such installment, as published by Citibank N.A.
5.2. Involuntary Transfers
If any Involuntary Transfer of Common Stock takes place, the following
procedures shall apply:
(a) Any Stockholder deprived or divested of any shares of Common
Stock by Involuntary Transfer (the "Transferor") shall promptly give written
notice thereof in reasonable detail to the Company. Any person or entity that
takes or proposes to take any ownership interest in such shares of Common Stock
(the "Transferred Shares") as a result of such Involuntary Transfer (the
"Transferee") shall hold such interest subject to the rights of the Company as
set forth in Section 5.2(b).
(b) For a period of 180 days following the earlier to occur of
receipt of the notice referred to in Section 5.2(a) or discovery of any
Involuntary Transfer, the Company may purchase the Transferred Shares in
accordance with Section 5.2(c), subject to the terms
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set forth herein. If the Company elects to purchase the Transferred Shares, the
Company shall notify the Transferee of its rights hereunder and specify the
number of Transferred Shares to be purchased.
(c) The closing for any sale of Transferred Shares to the Company
shall take place at the Company's principal executive office not later than
sixty (60) days after the Transferee receives the notice referred to in Section
5.2(b) or 14 days after the determination of Fair Value, whichever is later. The
purchase price payable by the Company for any Transferred Shares purchased
hereunder shall be the Fair Value of such Transferred Shares.
(d) In the event that the Company does not purchase all or any of
the Transferred Shares pursuant to Section 5.2, the Transferee shall take and
hold all rights and interests in any Transferred Shares that are not so
purchased subject to the terms of this Agreement.
5.3. Put and Call Rights
(a) On the terms and subject to the conditions set forth in Section
5.3, from the date of this Agreement until December 31, 1999, any of OSI, NYU
and each of the NYU Faculty Members separately may require the Company or Pfizer
to purchase all but not less than all of the shares of Common Stock held by each
such Stockholder at the price set forth immediately below which is based on the
formula attached hereto as Appendix A and agreed to by all of the Stockholders
(the "Fixed Put Right"). The formula attached hereto as Appendix A was
negotiated among OSI, Pfizer and the Company and thus it and the resulting Fixed
Put Right Prices do not necessarily reflect the fair market value of the Company
or the Common Stock as they might be determined pursuant to Section 5.4 or
otherwise. Upon the exercise of the Fixed Put Right by each of OSI, NYU and/or
each of the NYU Faculty, each exercising
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Stockholder agrees to acknowledge in writing that it has been provided access to
and has obtained all of the information that it has requested from Pfizer and
the Company in connection with its negotiation of such formula and the resulting
Fixed Put Right Prices.
Fixed Put Right Prices
** **
(b) On the terms and subject to the conditions set forth in Section
5.3, at any time subsequent to April 23, 2000, any of OSI, NYU and each of the
NYU Faculty Members may require the Company or Pfizer to purchase all but not
less than all of the shares of Common Stock held by each such Stockholder at a
price equal to the Fair Value of such shares (the "Put Right"), subject to the
limitations set forth in Section 11.1.
(c) On the terms and subject to the conditions set forth in this
Section 5.3, at any time subsequent to April 23, 2002, the Company, or Pfizer,
as the case may be, may require OSI, NYU or any NYU Faculty Member to sell to
the Company all but not less than all of the shares of Common Stock held by such
Stockholder at a price equal to the Fair Value of such shares (the "Call
Right").
(d) Any of OSI, NYU or any NYU Faculty Member may exercise the Fixed
Put Right or the Put Right, as the case may be, by delivering to the Company, or
Pfizer, as the case may be, with a copy to Pfizer, (if applicable), written
notice setting forth the number of shares of Common Stock held by such
Stockholder. The Company may exercise the Call Right with respect to OSI, NYU or
any NYU Faculty Member by delivering to such Stockholder written notice setting
forth the terms of the proposed purchase of Common Stock.
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** This portion has been redacted pursuant to a request for confidential
treatment.
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(e) Unless otherwise agreed to by the Company, or Pfizer, as the
case may be, and the selling Stockholder(s), the closing of any purchase of
Common Stock pursuant to the exercise of any Fixed Put Right, Put Right or any
Call Right hereunder shall take place at the principal executive offices of the
Company within sixty (60) days after the delivery of the notice referred to in
Section 5.3(d) or, where applicable, 14 days after determination of Fair Value,
whichever is later. With respect to the Put Right or Call Right, the Company or
Pfizer, as the case may be, shall pay the Fair Value of such shares either (i)
in full by cash or certified check at the closing, or (ii) one-third of the
total amount due shall be paid in cash or by certified check at the closing, and
the balance of the amount due shall be payable on the first and second
anniversaries of such closing in two equal installments, together with interest
on the amount of such installments from the date of closing calculated at the
prime rate, as in effect from time to time during the period prior to the
payment of such installment, as published by Citibank, N.A. If the Company or
Pfizer elects to pay in installments under (ii) herein, the Company or Pfizer,
as the case may be, shall execute a promissory note for the benefit of the
Stockholders exercising their put and call rights concerning the first and
second anniversary payments. In the case of an exercise of any Fixed Put Right,
the Company or Pfizer (if applicable), shall pay the applicable price of such
shares set forth in Section 5.3(a) in full by cash or certified check at the
closing.
5.4. Fair Value
Fair Value shall be calculated as follows:
(a) During a 15 day period following the date on which a Put or Call
Right is exercised under Section 5.3, the party or parties exercising such
option ("Exerciser) (or its or their personal representative) and the Board of
Directors of the Company and/or the
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receiving party of the exercise notice, as the case may require, shall each
submit to the other party or parties a proposal as to the fair market value of
each share of Common Stock. If the differential between the highest proposal and
the lowest proposal is not more than 10%, then the Fair Value shall be equal to
the average of such proposals; or
(b) In the event that the differential between the highest and
lowest proposals under clause (a) above is more than 10% or if only one or no
proposal is submitted under clause (a) above, then within ten business days
after the submission of such proposals, the Board of Directors shall select and
retain a qualified independent appraiser of closely held businesses (the
"Appraiser). If the Exerciser, or, if the Exerciser is the Company, the
receiving party does not submit written notice contesting the selection of the
qualified independent appraiser within ten business days of being so informed of
such selection, then the Board of Director's selection shall be final. If the
Exerciser or, if the Exerciser is the Company, the receiving party timely
submits such notice, then the Board of Directors shall request the American
Arbitration Association in the City of New York to appoint promptly the
Appraiser. The Exerciser(s) (or his or their personal representative), on the
one hand, and the Board of Directors of the Company and/or the receiving party
or parties of the exercise notice, as the case may require, on the other hand,
shall each submit to the Appraiser such party's respective proposal as to the
Fair Value (which proposal shall be the same proposal, if any, submitted under
clause (a) above), together with such supporting data as such party deems
relevant. The Appraiser shall then conduct its own evaluation of such opinions
and such data, and shall conduct such independent procedures and investigation
as the Appraiser shall deem necessary in order to form an opinion as to the fair
market value of each share of Common Stock. In determining fair market value,
the Appraiser shall assume that (i) the Company is
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sold as a going concern in an organized auction, (ii) there is no discount for
minority ownership, and (iii) there is a market for shares of the Company. The
Appraiser shall within 30 days of receipt of the relevant parties' proposals,
determine the Fair Value, which shall be within the range proposed by the
Exerciser and the Board of Directors and/or receiving party. The Appraiser shall
forthwith upon determination of Fair Value, give written notice of its
determination to the Exerciser (or its personal representative), the receiving
party and the Company. Unless the Board of Directors of the Company otherwise
decides, the fees and expenses of the Appraiser shall be paid equally by the
Exerciser (or its personal representative) and the Company.
(c) If Fair Value is being calculated on Transferred Shares pursuant
to an involuntary transfer under Section 5.2, the 15-day period referred to in
(a) above starts on the day after the Company gives notice to the Transferee of
its intention to purchase such Transferred Shares. The Transferee shall act as
the Exerciser and submit a Fair Value proposal.
5.5. Tag Along Rights
(a) In the event that one or more Stockholders propose to sell or
otherwise dispose of shares representing more than fifty percent of the
outstanding shares of Common Stock then outstanding (the "Majority
Stockholders") in one or a series of transactions to any Third Party (other than
a Permitted Transferee), such Majority Stockholders shall not consummate or
enter into any agreement to consummate such sale unless such Third Party
purchaser offers to purchase from each other Stockholder the number of shares of
such other Stockholder's Common Stock as determined in accordance with Section
5.5(b) at the same price and on the same other terms as such purchaser offered
to purchase such shares from the
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Majority Stockholders ("Tag Along Rights"). Any Stockholder proposing to sell or
otherwise dispose of its Common Stock to a Third Party purchaser pursuant to
Section 5.5 shall agree, and be able, to transfer to such purchaser good and
marketable title to the shares that such Stockholder proposes to sell, free and
clear of all liens, claims and encumbrances.
(b) The maximum number of shares of Common Stock that any
Stockholder may require any Third Party to purchase pursuant to Section 5.5(a)
shall be the total number of shares of Common Stock owned by each such
Stockholder multiplied by the percentage that the total number of shares of
Common Stock to be purchased by the Third Party bears to the total number of
outstanding shares of Common Stock.
(c) Prior to any sale under Section 5.5(a), the Majority
Stockholders shall notify the Company and each of the other Stockholders in
writing of such proposed sale, setting forth (i) the number of shares of Common
Stock that such Stockholder proposes to sell, (ii) the name and address of the
Third Party purchaser; and (iii) the amount of consideration (including the
value of any non-cash consideration) offered by the Third Party purchaser.
Within ten (10) days after receiving the foregoing notice, any Stockholder may
elect to exercise its Tag Along Rights by delivering written notice to the
Majority Stockholders of such Stockholder's election to sell the shares of
Common Stock offered for sale pursuant to Section 5.5. If none of the
Stockholders so notifies the Majority Stockholders within the foregoing ten (10)
day period, then the Majority Stockholders shall have the right to effect the
proposed sale of such shares for a period of sixty (60) days thereafter on
substantially the same terms and conditions as such shares were offered to the
other Stockholders.
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5.6. Take Along Right
(a) If Pfizer, and for so long as OSI's percentage ownership of
Common Stock outstanding is greater than ten percent, OSI (the "Control Group")
approve any sale of the Company by merger, consolidation, sale of the Company's
assets, sale of Common Stock or otherwise, to any person other than a member of
the Control Group or an Affiliate of a member of the Control Group, each of the
other Stockholders hereby agree to consent to, vote for and raise no objections
against, such sale. If such sale is structured as a sale of all of the
outstanding Common Stock, each other Stockholder hereby agrees to sell all of
its shares of Common Stock on the terms approved by the Control Group and to
take all reasonable actions requested by the Control Group or the purchaser in
connection with the consummation of any such sale ("Take Along Right"). As
consideration for the sale of such Stockholders' shares of Common Stock, each
Stockholder will receive for each share of Common Stock cash and the fair market
value of any non-cash consideration in the same amount as the Control Group
receives for the sale of each share of Common Stock.
(b) If the closing of any sale of Common Stock pursuant to Section
5.6(a) has not been effected within 180 days after the Control Group first
approves of such sale, the obligation of any Stockholder to participate in such
sale shall terminate and the provisions of Section 5.6 shall be reinstated.
(c) Nothing contained in Section 5.6 shall obligate the Control
Group to consummate any sale or the Company hereunder, and the Control Group may
abandon any such sale at any time. If any such proposed sale is abandoned, the
Control Group shall promptly send written notice thereof to each of the other
Stockholders.
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5.7. Stock Purchase Assignment.
Any right or obligation of the Company under Article 5 of this
Agreement to purchase Common Stock of a Stockholder may be assigned by the
Company to Pfizer. Pfizer shall not be under any legal obligation to accept such
assignment unless it so agrees in writing.
ARTICLE VI - PREEMPTIVE RIGHTS
6.1. Preemptive Rights.
(a) Except as permitted by Section 2.1(b) herein, after the date
hereof, the Company shall not issue any additional shares of Common Stock ("New
Shares") to any person or entity (the "New Stockholder") unless the Company
grants to all Stockholders the right to subscribe for and purchase the same
aggregate number of additional shares of Common Stock (the "Preemptive Shares")
as the number of New Shares, at the same price and upon the same terms as the
New Shares are being offered. The Company shall determine the number of
Preemptive Shares to be offered to each Stockholder by multiplying the total
number of Preemptive Shares by the percentage that each such Stockholder's
shares of Common Stock bears to the total number of shares of Common Stock
outstanding immediately prior to the issuance of New Shares and Preemptive
Shares hereunder. Notwithstanding the foregoing, there shall be no preemptive
rights by reason of any underwritten public offering.
(b) Prior to the issuance of any New Shares pursuant to Section 6.1,
the Company shall give each Stockholder written notice setting forth the terms
upon which such Stockholder may purchase Preemptive Shares hereunder.
(c) After receiving the notice described in Section 6.1(b), any
Stockholder may exercise its preemptive rights hereunder by replying in writing
within twenty (20) days
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after the date of such notice that such Stockholder agrees to purchase the
Preemptive Shares offered pursuant to Section 6.1. Each Stockholder may exercise
preemptive rights with respect to all, but not less than all, of the Preemptive
Shares that such Stockholder has the right to purchase pursuant to Section 6. 1.
(d) If any Stockholder fails to reply in accordance with Section
6.1(c), the Company shall have ninety (90) days thereafter to consummate the
sale of Common Stock to a New Stockholder pursuant to Section 6. 1. If the
Company has not consummated such sale within such ninety (90) day period, the
Company may not sell shares of common stock subsequently to any New Stockholder
without first offering the Stockholders preemptive rights with respect to such
shares in the manner provided for in Section 6.1.
(e) If the offering price for any New Shares consists of any
consideration other than cash, then the price at which the Stockholders shall be
offered preemptive rights hereunder with respect to any Preemptive Shares shall
be determined by an independent appraiser selected by the Company. Any
Stockholder purchasing Preemptive Shares hereunder shall pay the purchase price
therefor to the Company in cash; provided, however, that after obtaining the
consent of the Board of Directors of the Company, OSI may give consideration
other than cash if the value of such non-cash consideration is determined by
such independent appraiser to be at least equal to the amount of consideration
proposed to be paid by the New Stockholder for the New Shares hereunder.
ARTICLE VII - DEVELOPMENT OF A LEAD COMPOUND
7.1. Pfizer's Right of First Refusal for Initial Development.
(a) If the Company makes a preliminary assessment that any compound
that was invented, or for which a New Use was invented, by any person in the
course of such
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person's participation in the Research Program is or may be effective in
treating any indication in the Field or the Dermatology Indications, such
compound shall be considered a Lead Compound and the Company shall promptly
present such compound or New Use to Pfizer. Within sixty (60) days of such
presentation, Pfizer may notify the Company in writing of Pfizer's election to
(i) make an additional capital contribution to the Company to enable the Company
to further develop such Lead Compound or New Use, or (ii) negotiate the terms
pursuant to which Pfizer may collaborate with the Company in the development of
such Lead Compound or New Use, or acquire all of the Company's rights and
interests in such Lead Compound or New Use. Any rights acquired by Pfizer from
the Company hereunder with respect to any Lead Compound are subject to the
royalty fees payable to OSI and NYU under the Research Agreements and the
royalty fees payable to the Company under Section 7.3 hereof.
(b) If Pfizer makes any additional capital contribution to the
Company pursuant to Section 7.1(a)(i), any additional shares of Common Stock
issued in exchange therefor are subject to the preemptive rights provisions of
Section 6.1.
(c) If Pfizer elects not to exercise its right of first refusal
pursuant to Section 7.1(a), or if Pfizer fails to pursue diligently the
development of any Lead Compound or New Use with respect to which it has
obtained rights under Section 7.1(a)(ii), which determination shall be made by
the Board of Directors of the Company, then the Company may further develop and
market such Lead Compound or New Use independently, or the Company may enter
into licensing, joint venture or other arrangements with third parties to
facilitate such development.
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7.2. Pfizer's Right of First Refusal for Further Development.
(a) If any Lead Compound or New Use developed by the Company with
respect to which Pfizer has made a capital contribution pursuant to Section
7.1(a)(i) reaches the stage where the Company has decided to submit an
application to the Food and Drug Administration for designation of such Lead
Compound or New Use as an Investigational New Drug, or to pursue clinical
testing of such Lead Compound or New Use in humans, the Company shall present
such Lead Compound or New Use to Pfizer. Within sixty (60) days of such
presentation, Pfizer shall notify the Company in writing if Pfizer elects to
negotiate the terms under which it may acquire the Company's rights and interest
in such Lead Compound or New Use. Any such rights acquired by Pfizer are subject
to the royalty fees payable to OSI and NYU under the Research Agreements and the
royalty fees payable to the Company under Article 7.3 hereof.
(b) If Pfizer elects not to exercise its right of first refusal
pursuant to Section 7.2(a), then the Company may further develop and market such
Lead Compound or New Use independently, or by entering into licensing, joint
venture or other arrangements with third parties to facilitate such development.
7.3. Development by Pfizer.
(a) If Pfizer acquires rights in any Lead Compound pursuant to
Section 7.1 or 7.2 hereof, Pfizer shall pay to the Company a royalty equal to:
(i) ** of the Net Sales of any Human Therapeutic Product based on such Lead
Compound; or (ii) ** of the Net Sales of any Human Therapeutic Product where the
Lead Compound has been identified by screening
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** This portion has been redacted pursuant to a request for confidential
treatment.
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and is part of a Pfizer Selected Library or by screening of Analogs of a
compound from a Pfizer Selected Library (the "Anaderm Royalty".) The Anaderm
Royalty shall be in addition to, and not in lieu of, any royalties or other
payments that may be due to NYU or OSI under the Research Agreements. The
Anaderm Royalty shall be paid to the Company, notwithstanding the termination
provisions of Article 9 of this Agreement, for a period of ten years beginning
with the first commercial sale of such Human Therapeutic Product in any country,
unless at the end of such ten year period there exists in that country a Valid
Claim of an issued patent to such Human Therapeutic Product, a compound or
composition contained therein, a method or process employed in making such Human
Therapeutic Product, or a method of use for which such Human Therapeutic Product
is being marketed in that country, in which case Pfizer shall continue to pay
the Anaderm Royalty to the Company on Net Sales of such Human Therapeutic
Compound in such country during the period in which such Valid Claim exists in
that country.
(b) If Pfizer decides to negotiate an agreement with a Third Party
pursuant to which Pfizer would grant such Third Party a license under Pfizer's
rights in any Lead Compound or Human Therapeutic Product, which rights Pfizer
acquired from the Company pursuant to its Rights of First Refusal under Section
7.1 or 7.2 hereof, and Pfizer determines that payment of the Anaderm Royalty
would render the proposed licensing arrangement commercially unfeasible to
Pfizer, then Pfizer may negotiate with the Company in good faith to determine
the amount of royalties or other compensation that the Company will receive in
lieu of the Anaderm Royalty from such arrangement.
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7.4. Development by the Company.
(a) Subject to the provisions of section 7.4 (b) and 7.4(c) below,
in the event that Pfizer elects not to exercise its Rights of First Refusal with
respect to any Lead Compound or New Use pursuant to Section 7.1 or 7.2 hereof
and the Company decides to license such Lead Compound or New Use to a Third
Party, any payments received in connection with such license arrangement, less
any associated expenses, shall be paid as follows: ** to the Company, ** to OSI
under the OSI Research Agreement, ** to NYU under the NYU Research Agreement,
and ** to Pfizer.
(b) Notwithstanding the provisions of Section 7.4(a) above, and
subject to the provisions of Section 7.4(c) below, in cases where the Lead
Compound or New Use that is licensed to a Third Party was identified (i) by
screening a Pfizer Selected Library and the Lead Compound is part of the Pfizer
Selected Library or the New Use is based on a Lead Compound that is part of the
Pfizer Selected Library, or (ii) by screening Analogs of a compound from a
Pfizer Selected Library, any payments received in connection with such license
arrangement, less any associated expenses, shall be paid as follows: ** to the
Company, ** to OSI; ** to NYU; and ** to Pfizer.
(c) Notwithstanding the provisions of Sections 7.4(a) and (b) above,
no royalties shall be owed to NYU under this Section 7.4 unless NYU or any of
the NYU Principal Investigators or other employees or students of NYU
participating in the Research Program pursuant to the NYU Research Agreement has
made an Inventive Contribution during the course of participating in
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** This portion has been redacted pursuant to a request for confidential
treatment.
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the Research Program with respect to the Lead Compound or New Use licensed to
the Third Party. **
7.5. Analog Manufacture. The Company may make or have made Analogs of
compounds provided to it in a Pfizer Scientific Library or as part of the Pfizer
Compound File, and, as between Pfizer and the Company, the Company shall own all
such Analogs not already owned by Pfizer. The Company shall make all such
Analogs and mixtures of such Analogs available to Pfizer for screening and
analoging.
7.6. Approval of Analog Production and Screening. Pfizer shall have the
right to approve the choice of any Third Party selected by the Company to
produce and screen Analogs of Pfizer compounds. No Third Parties shall be
allowed to screen OSI Compounds or Analogs of OSI Compounds without the prior
written consent of OSI.
7.7. Assignment of Analog Rights. If Pfizer elects to develop and market a
Human Therapeutic Product outside the Field that contains an Analog of a Pfizer
compound that was made by or on behalf of the Company pursuant to Section 7.5 of
this Agreement, and is not contained in a Human Therapeutic Product that is
being marketed by the Company or a Third Party licensee of the Company, the
Company shall assign its rights in such Analog to Pfizer for royalties and/or
other compensation negotiated in good faith.
7.8. Development of Lead Compound for Different Indications. If Pfizer and
the Company express interest in developing the same Lead Compound for different
indications, Pfizer shall have the right, subject to certain restrictions
referred to in Section 7.9 of this
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** This portion has been redacted pursuant to a request for confidential
treatment.
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Agreement, to request in writing that the Company cease all development of said
Lead Compound, and the Company shall forthwith comply with such written request.
7.9. Request to Cease Lead Compound Development. The right of Pfizer to
request that the Company cease development of any Lead Compound will terminate
three (3) months after the date on which Pfizer is informed, pursuant to Section
7.2(a) of the Agreement, of the Company's decision to apply to the FDA for
designation of said Lead Compound as an Investigational New Drug.
ARTICLE VIII - LEGENDING OF SECURITIES
8.1. Legends. Each certificate representing shares of Common Stock issued
after the date hereof shall bear a legend in substantially the form set forth
below:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. THE
SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A RESTATED AND AMENDED STOCKHOLDERS AGREEMENT, DATED
APRIL 23, 1999, AMONG THE COMPANY AND THE STOCKHOLDERS OF THE
COMPANY SPECIFIED THEREIN, A COPY OF WHICH AGREEMENT IS ON FILE AT
THE PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY. THE SALE, TRANSFER OR
OTHER DISPOSITION OF THESE SECURITIES IS SUBJECT TO THE TERMS OF
SUCH AGREEMENT. SUCH AGREEMENT ALSO CONTAINS PROVISIONS RELATING TO
THE COMPOSITION OF THE BOARD OF DIRECTORS OF THE COMPANY AND THE
EXERCISE OF VOTING RIGHTS OF THE HOLDERS OF THE SECURITIES
REPRESENTED HEREBY."
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ARTICLE IX - TERMINATION AND SURVIVAL OF PROVISIONS
9.1. Termination.
This Agreement shall terminate (a) as to any party when such party
ceases to be a Stockholder, or (b) upon the earlier to occur of (i) the date
upon which the parties then bound by this Agreement consent in writing to
terminate this Agreement; (ii) the date as of which there remains only one
Stockholder of the Company; and (iii) the dissolution or liquidation of the
Company.
9.2. Survival.
Notwithstanding the termination of the Agreement under 9.1, the
royalty provisions, if applicable, contained in Article 7 and Sections 2.1(d),
2.1(e) and 2.2 herein, shall survive with respect to any and all parties
terminated.
ARTICLE X - REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
10.1. Representations and Warranties of Each Stockholder.
Each Stockholder represents and warrants to the other parties,
solely with respect to itself, that:
(a) If such Stockholder is a corporation, partnership or trust, (i)
such party is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization; (ii) such party has all requisite
corporate, partnership or trust power and authority to execute, deliver and
perform this Agreement; and (iii) such party has taken all corporate,
partnership or trust action required to duly authorize such execution, delivery
and performance.
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(b) If such Stockholder is a natural person, he or she has full
legal capacity, right, power and authority to execute, deliver and perform this
Agreement.
(c) This Agreement has been duly executed and delivered by such
Stockholder and constitutes a binding obligation of such Stockholder enforceable
in accordance with its terms, except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditor's rights generally, or by principles governing the
availability of equitable remedies.
(d) Neither the execution, delivery or performance by such
Stockholder of this Agreement, nor the consummation by such Stockholder of the
transactions contemplated hereby, does or will (with the giving of notice or the
passage of time or both) conflict in any material respect with, or constitute a
material default under, (i) if such party is a corporation, partnership or other
entity, the Certificate of Incorporation, Bylaws, partnership agreement or other
organizational or governing documents of such party, (ii) any judgment to or by
which such party is or may be subject, bound or affected, or (iii) any
applicable law or obligation to which such Stockholder is bound.
(e) No judgment has been issued, and no action or proceeding has
been instituted or, to the knowledge of such Stockholder, threatened, against or
otherwise involving such Stockholder, (i) to set aside or modify any
authorization of the execution, delivery and performance by such Stockholder of
this Agreement, (ii) to enjoin or prevent the execution, delivery or performance
by such Stockholder of this Agreement, or (iii) seeking damages in connection
with the execution, delivery or performance by such Stockholder of this
Agreement.
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ARTICLE XI - INSUFFICIENT SURPLUS AND INSOLVENCY
11.1 Notwithstanding anything contained herein to the contrary, the
Company shall not be obligated to purchase, redeem, receive, take or otherwise
acquire shares of Common Stock of a selling Stockholder if the capital of the
Company is impaired or would become impaired thereby. If the Company's capital
is or would become impaired by purchasing the Common Stock of the selling
Stockholder, the Company shall notify all of the Stockholders in writing of such
impairment, and indicate that the Company is precluded from making such
purchase. Upon receiving such notices, the Company's remaining Stockholders
shall be deemed to have been offered the shares of the selling Stockholder on
the same terms as such shares would have been offered to the Company. The
Company shall determine the number of shares deemed to have been offered to each
Stockholder by multiplying the total number of shares by the percentage that
each such remaining Stockholder's shares of Common Stock bears to the total
number of shares of Common Stock held by the non-selling Stockholders at the
date of the notice. The price of which such Stockholders would pay for such
shares shall be Fair Value in the case of a sale or transfer pursuant to Section
5.2 or 5.3, or, in the case of a sale pursuant to Section 5.1, the purchase
price provided for in such section. Any Stockholder may purchase such shares by
paying the purchase price therefor within sixty (60) days after delivery of the
notice from the Company ("Closing"). The purchasing Stockholder shall pay the
Fair Value of such shares or purchase price referred to in Section 5.1 either
(i) in full by cash or certified check at the Closing, or (ii) one-third of the
total amount due shall be paid in cash or certified check at the Closing, and
the balance of the amount due shall be payable on the first and second
anniversaries of such closing in two equal installments, together with interest
on the amount of such installments from the date of Closing calculated at
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the prime rate, as in effect from time to time during the period prior to the
payment of such installment, as published by Citibank, N.A. The selling
Stockholder shall retain all right, title and interest in and to any shares of
Common Stock that are not purchased by the other Stockholders.
ARTICLE XII - MISCELLANEOUS
12.1. Notices. All notices, requests, consents, demands, elections and
other communications required or permitted hereunder shall be in writing and
shall be given to the intended recipient at the following address:
if to the Company:
Anaderm Research Corp.
235 East 42nd Street
New York, NY 10017-5755
Att: **
Tel: 212-573-3770
Fax: 212-808-6495
with copies to:
Pfizer Inc.
235 East 42nd Street
New York, NY 10017-5755
Att: Office of General Counsel
Tel: 212-573-3637
Fax: 212-573-1445
Squadron, Ellenoff, Plesent & Sheinfeld
551 Fifth Avenue
New York, NY 10176
Att: Joel I. Papernik, Esq.
Tel: 212-476-8364
Fax: 212-697-6686
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** This portion has been redacted pursuant to a request for confidential
treatment.
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If to Pfizer:
Pfizer Inc.
235 East 42nd Street
New York, NY 10017-5755
Att: Office of General Counsel
Tel: 212-573-3637
Fax: 212-573-1445
If to OSI:
OSI Pharmaceuticals, Inc.
106 Charles Lindbergh Blvd.
Uniondale, NY 11553
Att: Gary E. Frashier
Tel: 516-222-0023
Fax: 516-745-6429
If to NYU:
NYU Medical Center
550 First Avenue
New York, NY 10016
Att: **
Tel: 212-263-8191
Fax: 212-263-8189
with a copy to:
**
NYU Medical Center
550 First Avenue, MSB 153
New York, NY 10016
Tel: 212-263-7921
Fax: 212-545-8846
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** This portion has been redacted pursuant to a request for confidential
treatment.
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If to ** :
**
c/o NYU Medical Center
550 First Avenue
New York, NY 10016
Tel: 212-263-8191
Fax: 212-263-8189
If to ** :
**
c/o NYU Medical Center
550 First Avenue
New York, NY 10016
Tel: 212-263-8191
Fax: 212-263-8189
If to ** :
**
c/o NYU Medical Center
550 First Avenue
New York, NY 10016
Tel: 212-263-8191
Fax: 212-263-8189
If to ** :
**
c/o NYU Medical Center
550 First Avenue
New York, NY 10016
Tel: 212-263-8191
Fax: 212-263-8189
Any such notice, request, consent, demand, election or other communication
shall be deemed to have been duly given if personally delivered or sent by
registered or certified mail,
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** This portion has been redacted pursuant to a request for confidential
treatment.
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return receipt requested, by Federal Express, Express Mail or similar overnight
delivery service or by telegram, telex or facsimile transmission confirmed by
letter, and will be deemed given, unless earlier received (i) if sent by
certified or registered mail, return receipt requested, five calendar days after
being deposited in the United States mail, postage prepaid; (ii) if sent by
overnight delivery service for next business day delivery, the next business day
after being entrusted to such service, with delivery charges prepaid or charged
to the sender's account; (iii) if sent by telegram or telex or facsimile
transmission, on the date sent, provided confirmatory notice is sent by any
other method specified in clause (i), (ii) or (iv); and (iv) if delivered by
hand, on the date of delivery.
12.2. Entire Agreement. This Agreement, together with the Appendices
hereto and the Research Agreements, constitute the entire understanding among
the parties hereto relating to the subject matter hereof. This Agreement may not
be amended except by a writing signed by all parties hereto. No discharge, or
waiver, in whole or in part, of any of its provisions shall be valid, unless in
writing, signed by the party against whom the same is sought to be enforced.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their legal successors, the latter being deemed to include,
without limitation, all executors, administrators, receivers, committees, other
personal representatives, transferees of interest pursuant hereto, and all other
legal successors, and shall, in addition, be binding upon all persons who,
whether in breach of this Agreement or otherwise, have or claim an interest in
the shares of the Company or are in possession of a certificate representing
shares in the Company, or any other evidence of an interest in the shares of the
Company.
37
42
12.3. Governing Law. This Agreement shall be governed by, and interpreted
and construed in accordance with, the laws of the State of New York, without
regard to its conflict of law provisions.
38
43
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
ANADERM RESEARCH CORP.
By: /s/
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Name: **
Title: President and CEO
PFIZER INC.
By: /s/
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Name: Paul S. Miller
Title: Executive Vice President
And General Counsel
OSI PHARMACEUTICALS, INC.
By: /s/
------------------------------------------
Name: Colin Goddard, Ph.D.
Title: President and CEO
NEW YORK UNIVERSITY
By: /s/
------------------------------------------
Name: **
Title: **
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**
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**
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**
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**
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** This portion has been redacted pursuant to a request for confidential
treatment.
44
APPENDIX A
As used in Section 5.3(a) of the Agreement, the formula to calculate the
Fixed Put Right for each Stockholder is ** through and including April 23, 1999.
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** This portion has been redacted pursuant to a request for confidential
treatment.